Supreme Court: Wal-Mart Too Big to Sue

In a critical five to four vote, with Justice Antonin Scalia writing for the five justice majority, the Supreme Court made it much harder for the victims of discrimination to take class action cases against large employers. The US Supreme Court majority ruled that the largest sex-discrimination class-action suit in history, filed on behalf of 1.6 million women, cannot proceed as a class action.

Scalia sets up a nearly impossible standard, requiring that there be common elements tying together every one of the “literary millions of employment decisions at once,” going beyond the "common questions of law or fact" required by the law. Justice Ruth Bader Ginsburg, writing for the four member minority of Justices Breyer, Sotomayor, and Kagan said there were more than enough elements to unite the claims and would have referred the case back to the 9th Circuit.

"First we have the government deciding that certain financial interests are too big to fail. Now we have the majority of the Supreme Court ruling that large employers are too big to sue concerning systematic employment discrimination," said Feminist Majority Foundation President Eleanor Smeal. "Without the ability to take effective class action lawsuits, women and minorities lose a major pillar in the fight to eliminate employment discrimination."

The court's five Republican-appointed justices ruled in favor of Wal-Mart, while the four justices appointed by Democrats - including three women - sided with the employees. More than 20 large corporations supported Wal-Mart in the case, including Intel Corporation, Altria Group Inc., Bank of America Corporation, Microsoft Corporation, and General Electric Corporation. Organizations fighting for women's rights, human rights and civil rights backed the workers.

The initial lawsuit was filed in 2001 by Betty Dukes, a former Wal-Mart employee, and six other women. They allege Wal-Mart systematically paid and promoted women employees less. They were seeking what could have been billions of dollars in punitive damages and back pay for all female employees of the big-box chain since 1998.